June 26, 2003: United States
Constitution protects
the privacy rights of 86 million unmarried Americans

By Thomas F. Coleman, Esq.

Hurray! Today is a
day that some of us privacy rights advocates have been awaiting, for a
long, long time. June 26, 2003 is a day that will be remembered in
American history.

The United States Supreme Court issued an opinion today
in Lawrence v. Texas invalidating the Texas sodomy law. The
decision overruled its own 1986 decision in Bowers v. Hardwick
which upheld a Georgia sodomy law.

Writing for a majority of the Court, Justice Anthony
Kennedy said that the federal Constitution prohibits states from
criminalizing private sexual relations between consenting adults. Now, in
order to give them a proper burial, the
remaining sodomy laws, fornication laws, and anti-cohabitation laws will
have to be repealed by legislators, declared unconstitutional and
unenforceable by state Attorneys General, or declared invalid by federal and state
courts.

The sexual privacy rights of unmarried Americans, who
head up nearly half of the nation's households, have finally been
recognized as being protected by the federal Constitution -- at last!

The wheels of legal change turn slowly – often too
slowly. The political movement for sexual privacy rights started in the
1950s. Illinois became the first state to pass a consenting adults law in
1961. The United States Supreme Court has now recognized a right of
privacy for consenting adults. More than 50 years of legal, political, and
social movement and struggle has finally paid off.

The
following is a summary of the laws which are affected by today's decision
by the Supreme Court. If the state legislatures do not repeal these
statutes, then cases will have to be brought by affected parties to seek
court orders to invalidate them. This could take a few years to
accomplish.

Sodomy. Twelve states make it a crime for an
unmarried man and woman to engage in consensual sodomy in private (which
is defined as oral or anal sex or both): Alabama, Florida, Idaho,
Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, North
Carolina, South Carolina, Utah, and Virginia fall into this category. In
four others -- Missouri, Kansas, Oklahoma, and Arkansas -- homosexual
sodomy is criminal while heterosexual sodomy is not.

Unmarried cohabitation. Eight states continue
to make it a crime for an unmarried man and a woman to cohabit together:
Florida, Idaho, Michigan, Mississippi, North Carolina, North Dakota,
Virginia and West Virginia fall into this category.

Fornication. Seven states and the District of
Columbia criminalize consenting sexual intercourse between an unmarried
man and a woman in private: Idaho, Massachusetts, Minnesota, South
Carolina, Utah, Virginia, West Virginia, fall into this category.

Implications for Marital Status Discrimination

"Marital status" is the "new kid on the block" when it
comes to the advocacy of human rights and equality. Proponents of the
issue of marital status discrimination have been struggling for political
and legal attention because governmental civil rights enforcement
agencies, and private advocacy organizations too, have been consumed with
"higher priorities" which for years have had a stronger foothold in our
political and legal systems.

Discrimination on the basis of race, religion, color,
national origin, ancestry, sex, disability, age, and sexual orientation
are established civil rights issues. Each of these was once the "new kid
on the block." It took time, patience, and persistence for them to take
hold as legitimate human rights concerns.

There is language in Lawrence v. Texas --
today's decision by the Supreme Court -- which suggests that
discrimination on the basis of "marital status" will be viewed by the
Supreme Court with more scrutiny in the future. The Court went out of its
way to emphasize that its decision is based on constitutional rights for
the unmarried, not just for same-sex relationships.

For example, the Court’s decision today quotes with
approval from the 1972 case of Eisenstadt v. Baird (involving a law
which made it a crime to give contraceptives to unmarried people) where
the Court then said:

"If the right of privacy means anything, it is the
right of the individual, married or single, to be free from unwarranted
governmental intrusion . . ."

The Court today also quoted with approval from the
dissent of Justice Stevens in Bowers v. Hardwick, the very case
which the Court today said it was overruling. This is the language which
the Court emphasized today as an underpinning for its ruling:

"[I]ndividual decisions by married persons, concerning
the intimacies of their physical relationship, even when not intended to
produce offspring, are a form of liberty protected by the Due Process
Clause of the Fourteenth Amendment. Moreover, this protection extends to
intimate choices by unmarried as well as married persons."

The Court explicitly declined to limit its decision to
the Equal Protection Clause, which would have found the Texas law
unconstitutional because it made homosexual sodomy illegal but not
heterosexual sodomy.

Instead, the Court used broad language, making it clear
that unmarried people have sexual privacy rights, and declared the Texas
law unconstitutional as a violation of basic Due Process (which in this
case means the right of privacy). As a result, all criminal laws which
intrude on the privacy rights of unmarried adults are now constitutionally
defective.

Although many civil rights activists will claim this
new court decision to be a "gay rights" victory – which it would have been
had the court simply relied on Equal Protection as a basis for
invalidating the Texas law -- in fact it is a victory for all unmarried
adults regardless of sexual orientation. The decision today puts some
meaty flesh on the bare bones issue of "marital status" discrimination.

Not
only will today's ruling cause the remaining laws criminalizing private
sexual conduct of unmarried adults to be invalidated – laws against
sodomy, fornication, cohabitation, and similar statutes – it puts some
wind under the sail of the civil rights movement for equal rights for
unmarried and single Americans.

The American Association for Single People is less than
five years old. Prior to AASP, no national human rights organization made
the issue of marital status discrimination or the constituency of
unmarried Americans a top priority, much less any priority.

Although this is a relatively new political, legal, and
social movement, it is an important one. It will flourish and blossom if
those who believe in this cause are persistent and patient.

Marital status discrimination has its roots in
religious belief and church dogma. Some people say "You can't fight
religion."

Well, in addition to the reality that we live in an
increasingly secular society, and in addition to the fact that "separation
of church and state" is part of the fabric of our constitutional
democracy, the United States Supreme Court has just handed a new tool to
advocates struggling to attain equal rights for 86 million unmarried
Americans.

For that we can be grateful.
"""

Thomas F. Coleman is an attorney whose legal practice
and political advocacy have focused for 30 years on the right of privacy,
marital status discrimination, family diversity, and singles' rights. He
is the founding Executive Director of the American Association for Single
People.